Clinton tech aide's deposition keeps email troubles in spotlight

Democratic presidential candidate Hillary Clinton reacts after giving an address on national security Thursday, June 2, 2016, in San Diego, Calif. (AP Photo/John Locher)

A former State Department IT staffer's refusal to testify in a civil lawsuit surrounding Hillary Clinton's email practices presents the latest legal and political headache for a presidential candidate trying to pivot her campaign toward a general election battle with Donald Trump.

Clinton, who has nearly enough delegates to secure the Democratic nomination, blasted Trump's approach to foreign policy in a speech Thursday, but Republicans continue to question her judgment and her trustworthiness, often pointing to her decision to exclusively use a private email server for government business when she was secretary of state.

The email issue, and the ongoing FBI investigation and lawsuits about it, has been a constant drag on her campaign. On Wednesday, attorneys for Bryan Pagliano, a State Department employee who set up and maintained the server, told a judge that he intends to assert his Fifth Amendment right against self-incrimination in a civil deposition scheduled for next Monday.

In a motion seeking a protective order to keep plaintiff Judicial Watch from recording the deposition, attorneys said Pagliano plans to take the Fifth in response to "any and all questions that may be put to him."

Judicial Watch President Tom Fitton told Sinclair in an interview Thursday that Pagliano's intent to invoke the Fifth Amendment does not alter his organization's plans for the deposition.

"We're going to ask him the questions we would otherwise ask him, and we may explore the basis for his Fifth Amendment privilege," Fitton said.

Despite years of litigation and thousands of documents being made public, he said there are still issues that have gone unaddressed.

"Our goal is to get some accountability," he said. "The court wants answers to questions about why Freedom of Information Act was subverted, how it worked, and in the end we want to get the documents we're due."

In a response to Pagliano's motion filed Thursday, Judicial Watch attorney Michael Bekesha argued that the demand for a protective order against recording the deposition is "unnecessary and premature." Bekesha stated that a recording could help the court assess Pagliano's demeanor and credibility and the conduct of the attorneys.

Also, if Pagliano does answer questions that do not present a risk of prosecution, Judicial Watch would want those responses on video. Bekesha said any concern that the video will be released can be addressed in the future since the judge has already ordered that videos of these depositions be sealed.

Bekesha also took issue with the "unwarranted and inappropriate" suggestion that the lawsuit has a political agenda.

"This motion represents the second time in the past week that a former State Department employee has attacked Plaintiff's motives in pursuing this case and in conducting discovery," he wrote.

Pagliano's attorneys have until noon Friday to file their response.

Pagliano's role in the email drama has always been somewhat nebulous. Payment for his work doing technical support for the Clintons was not listed on government financial disclosure forms, and the State Department has been unable to locate copies of archives of his government email account.

Pagliano refused to speak to the House Benghazi Committee last fall citing his Fifth Amendment rights. He initially balked at talking to the FBI as well, but his attorneys were ultimately able to negotiate an immunity deal.

Fox News reports cited an unnamed intelligence official calling Pagliano a "devastating" witness who helped investigators determine who had access to Clinton's computers and cross-reference her emails with other evidence.

Attorneys invoked the Fifth Amendment again this spring, though, refusing to allow two Senate committees to question him.

"With all appropriate respect, whether and when a citizen may assert a Fifth Amendment a constitutional right is not up to your legal staff," attorney Mark MacDougall wrote to senators at the time. "Whatever agreement Mr. Pagliano may have reached with the Department of Justice in no way constitutes a waiver of his Fifth Amendment rights."

Pagliano's continued invocation of the Fifth Amendment is somewhat unexpected, according to Ronald Sievert, a former Justice Department attorney and a law professor at the University of Texas at Austin.

"I must admit I was at first surprised by this witness' invoking the Fifth," he said. "You can only invoke the Fifth in a criminal or civil case if there is a reasonable fear of prosecution, and we had been led to believe this witness had been given immunity."

If he only received testimonial immunity for the matters discussed in his FBI interviews, though, he may still have legitimate concerns about prosecution. If that is the case, Sievert said the plaintiffs could ask the government to extend his immunity to cover the civil suit or give him transactional immunity.

Judicial Watch has indicated that it may seek a deposition of Clinton herself if it cannot get answers from her former staffers. Whatever the outcome of the lawsuits or the FBI investigation, though, Clinton may not be able to put the controversy completely behind her.

A Morning Consult poll released Wednesday found that 85 percent of voters have heard about her private email use and 48 percent consider it a "major problem," including a quarter of Democrats. Half of respondents said her behavior was illegal and only 20 percent said it was ethical.

Headlines about top aides refusing to answer questions and asserting their right against self-incrimination are unlikely to improve voters' opinions of what she did.

Democratic strategist Craig Varoga dismissed the latest news, though. He argued that the die is already cast for the 2016 election and these developments will not alter the choice voters have before them between Trump and Clinton.

"That is an election where the choice is an erratic, unstable, demagogic narcissist versus one of the most qualified and most over-examined candidates ever to run for president," he said.

Varoga contrasted Clinton's belated admission that her actions were a mistake with Donald Trump's refusal to ever apologize for anything.

"She has already said publicly that her use of a personal email server was a mistake, and pledged to improve how all government agencies handle this issue in the future," he said. "...The con man behind Trump University, however, has no shame and will continue to rant about this and other non-issues for the next five months. "

Democrats who support Clinton as their nominee are betting that he is right.

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